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A Federal Communications Commission lawyer faced a skeptical panel of judges today as the FCC defended its repeal of net neutrality rules and deregulation of the broadband industry.

FCC General Counsel Thomas Johnson struggled to explain why broadband shouldn't be considered a telecommunications service, and struggled to explain the FCC's failure to protect public safety agencies from Internet providers blocking or slowing down content.

Oral arguments were held today in the case, which is being decided by a three-judge panel of the US Court of Appeals for the District of Columbia Circuit. (Audio of the four-hour-plus oral arguments is available here.) Throttling of firefighters' data plans played a major role in today's oral arguments.

Further Reading

Of the three judges, Circuit Judge Patricia Millett expressed the most skepticism of Johnson's arguments, repeatedly challenging the FCC's definition of broadband and its disregard for arguments made by public safety agencies. She also questioned the FCC's claim that the net neutrality rules harmed broadband investment. Circuit Judge Robert Wilkins also expressed some skepticism of FCC arguments, while Senior Circuit Judge Stephen Williams seemed more amenable to FCC arguments. (Williams previously dissented in part from a 2016 ruling that upheld the Obama-era net neutrality rules. Now the same court is considering FCC Chairman Ajit Pai's repeal of those rules.)

The lawsuit seeking to overturn the net neutrality repeal was filed by more than three dozen entities, including state attorneys general, consumer advocacy groups, and tech companies such as Mozilla and Vimeo.

Is broadband telecommunications?

In order to deregulate broadband, the FCC argued that broadband itself isn't a telecommunications service and is instead an information service. Under US law, telecommunications is defined as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received."

By contrast, US law says an information service is "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." It's up to the FCC to determine whether something is a telecommunications or information service, but FCC decisions can be overruled by a court if they aren't justified properly.

Further Reading

Millett pointed out the importance of the "via telecommunications" phrase in the information service definition, which makes it clear that an information service rides on top of a telecommunications network. For broadband itself to be an information service, ISPs have to offer something more than a pure transmission service.

Johnson said that broadband is an information service because Internet providers offer DNS (Domain Name System) services and caching as part of the broadband package. DNS and caching "are determinative here" because they allow broadband users to perform all the functions listed in the definition of an information service (e.g. acquiring, storing, and processing information), he argued.

"DNS, for example, it generates queries to other servers, it stores and retrieves domain name information, it translates domain name information that is provided by the user into an IP address and back," he said. "Caching stores popular content at local servers that users can access, so it satisfies the storage and retrieval functionalities as well."

But the DNS/caching argument didn't seem to satisfy Millett. She repeatedly asked Johnson why the FCC still considers telephone service to be telecommunications, despite ruling that broadband isn't. "I'm having a lot of trouble understanding" how the FCC's description of broadband wouldn't also apply to telephone service, she said.

Like broadband, "telephone service is constantly used to acquire information and share information," Millett said. She used the filling of medical prescriptions as an example. Someone can call a pharmacy over the phone and use their voice or push a series of buttons to get a prescription filled, just as they can get a prescription filled by going to a doctor's website, she said. "It seems to be the exact same functionality, but one is voice and one is typing," she said.

Millett also noted that people who are hard of hearing use telephone services with special technology that makes it possible for them to communicate. "That's a telecommunications aspect of phones," she said. But the existence of this technology that rides over the phone network hasn't caused the FCC to decide that telephone service isn't telecommunications.

Johnson argued that DNS and caching are "functionally integrated, vital information-processing components of broadband that distinguish it from traditional telephone service."

Throttling of firefighters

Verizon Wireless' throttling of an unlimited data plan used by Santa Clara County firefighters last year played a role in today's oral arguments. Santa Clara County Counsel Danielle Goldstein told judges that the FCC failed to address the potential impact that blocking and throttling could have on public safety.

Blocking, throttling, or any sort of paid prioritization that causes other traffic to be delivered slower than prioritized traffic could affect both public safety agencies and consumers who rely on broadband to get emergency messages, she noted. As an example, she said her county's public health website provides information about vaccine stock in case of influenza outbreaks.

US law requires the FCC to consider public safety impacts, Goldstein said. "The FCC can't fail to address public safety, especially in an order that purports to preempt state and local government's ability to fill that regulatory gap," she said, noting that the FCC is attempting to preempt state and local net neutrality laws.

After-the-fact remedies aren't sufficient for public safety, because such remedies would come after emergencies causing death, she said.

Millett grilled Johnson on the public safety topic. "Post-hoc remedies don't work in the public safety context, and unless I missed it, that was not addressed anywhere in the [repeal] order," Millett said.

Johnson responded that "the burden ought to be on them [the public safety agencies] to show concrete evidence of harm."

Millett cut in, saying, "why is the burden on them? The statute repeats again and again that public safety is an important goal, you had comments [from the public] expressing concerns, a lot of them. It seems like you have a statutory obligation, you had a lot of comments, a serious issue that should have been addressed by the commission in the order. That's not a burden on them."

Judge Wilkins addressed the public safety and preemption topics together, posing a hypothetical in which New York issues a state law that says ISPs can't throttle service to firefighters.

"Your order would seem to prohibit that [hypothetical law] because your order is written very broadly," Wilkins said. "Doesn't it say that basically all state and local regulations with respect to broadband are preempted?"

Johnson said the FCC is not trying to preempt traditional public safety functions carried out by states, and said whether a specific state law is preempted "would depend on the facts of that particular case." He didn't give a specific answer to whether a state could prohibit throttling of firefighters' Internet service.

The FCC still requires ISPs to disclose any blocking, throttling, and paid prioritization to consumers. Johnson argued that requiring public disclosures will prevent bad behavior, because the Federal Trade Commission can punish companies that deceive consumers.

But Millett asked how blocking or throttling could be considered deceptive if the ISP discloses it. Johnson conceded the point, saying, "if it's fully disclosed, there wouldn't be anything deceptive."

Per Johnson's motivated reasoning, because dialing a telephone number requires lookups in databases and other information retrieval in order for a call to be completed, the telephone system is not a telecommunications service.

The arguments are... wow. And I have to say, I was a little surprised byw hat arguments were NOT made.

if anyoen needs more background or information btw (including input by a bunch of lawyers on how this appeal can go) here's a panel I did with the EFF, AccessNow, and Public Knowledge (plus a private practice lawyer that works on telecom stuff in the Atlanta area) from September.

On a more serious note, I'm pleased to see the judge appears to understand that telecommunication service infrastructure is required to reach information services.

That was my take, too, and that's the telling part.

If you remove the telecommunications service part of that, you're left without an Internet over which to transmit information. ISP only really have control over the telecommunications service part, since they don't provide "information services" that can be delivered anywhere without the ability to communicate it via the means (cable, fiber, DSL, what have you) they do. They're delivery people.

That means they're a telecommunications service.

The whole purpose of a telecommunications service is to provide a means relay information, whether as an individual or as part of other services.

That's why I couldn't grasp how the FCC's definition made any actual difference in what happened. It's the transmission part that's important, not what's being transmitted. That's why it's a telecommunications service, as defined by law.

The information services thing would be like Netflix or Amazon or Ars or something that has the content they want people to be able to access. But NOT an ISP, because that's only the delivery side, even if they have their OWN content they want to deliver, too. Because that content of theirs can be delivered by other Internet providers (if they let them, that is).

I mean, it's a no-brainer to me the FCC was twisting reality about their justification for repealing NN in the first place.

Too bad no one will face criminal charges over this. And they should. The kind of asshattery the FCC pulled since Trump was elected should be illegal.

No DNS necessary to utilize the telecommunications service, since DNS is just a service on top they provide (like caller ID), but which I'm not obligated to use. And I don't, I use my own.

P.S. Quit using your ISP DNS.

At work our internal DNS servers are pointed at root servers and I've never used the ISP's DNS. We also host our own public DNS. This argument just blows my mind. It's like they think people are going to be so stupid about this they keep repeating it hoping if you hear it enough it will just become true, because everyone says it.

Per Johnson's motivated reasoning, because dialing a telephone number requires lookups in databases and other information retrieval in order for a call to be completed, the telephone system is not a telecommunications service.

Seems to me that before the internet there was a DNS server in every home. They used to leave them on our front porch every year.

EDIT: Just thought of this.... Remember 411? Remote DNS at its finest.

Per Johnson's motivated reasoning, because dialing a telephone number requires lookups in databases and other information retrieval in order for a call to be completed, the telephone system is not a telecommunications service.

Careful now...your age is showing - but yeah, I still call it 'dialing', too. But then I also own a Zippo and know how to drive a stick.

Per Johnson's motivated reasoning, because dialing a telephone number requires lookups in databases and other information retrieval in order for a call to be completed, the telephone system is not a telecommunications service.

Seems to me that before the internet there was a DNS server in every home. They used to leave them on our front porch every year.

I still have to transfer one from the front porch to the recycling bin every now and then.

Arguing that DNS makes broadband an information service is exactly like arguing that phone lines are an information service because they give you a phone book with it. That's just plain stupid.

Nah, they'll be claiming that because they provide "an integrated 411 service" that telephone lines are actually an information service.

All those people who just dial numbers at random don't count. Just like all those people connecting to service on the Internet via IP addresses don't exist. "It's impossible to use an Internet connection without DNS" is essentially the reasoning FCC counsel is trying to use.

You can use someone else’s dns servers but I’m sure the vast vast majority of customers use isp provided dns and they depend on it.

But I don’t even know what they mean by caching. Some isps have value added services that cache content while they harvest your privacy. But it’s not typically a default that I’ve ever come across outside of specialized mobile plans.

If they are talking about something like caching my Netflix or Akamai stuff, that’s a business arrangement between those two entities and nothing to do with me. I’m not getting my Netflix data from the ISPs cache. I’m getting it from Netflix who directed me towards one of their caching servers which happens to be located in my isps data center.

Arguing that DNS makes broadband an information service is exactly like arguing that phone lines are an information service because they give you a phone book with it. That's just plain stupid.

Nah, they'll be claiming that because they provide "an integrated 411 service" that telephone lines are actually an information service.

All those people who just dial numbers at random don't count. Just like all those people connecting to service on the Internet via IP addresses don't exist. "It's impossible to use an Internet connection without DNS" is essentially the reasoning FCC counsel is trying to use.

[shaking my head]

Alright fine... New analogy:

Arguing that DNS makes broadband an information service is exactly like arguing that phone lines are an information service because they give you a phone with Google Assistant on it to call someone by name. That's still just plain stupid.